Disinheriting Adult Independent Children

As long as testamentary freedom exists, some parents will try to disinherit their children. In British Columbia a determined parent can do so with expert estate planning. If a parent simply uses their will to disinherit a child, however, that parent runs the risk the child will bring a successful wills variance claim under the British Columbia Wills Variation Act .

In this paper we will examine the British Columbia Wills Variation Act and review some of the factors the courts consider relevant in deciding whether the wills variance claim should be dismissed and the disinheritance permitted to stand. .

The BC Wills Variation Act

The British Columbia Wills Variation Act permits the court, in appropriate cases, to rewrite a will to make provision for designated family members. Eligible wills variance claimants include the testator’s spouse and/or children– both biological and adopted. Common-law spouses are also potential claimants if they have cohabited with the Deceased for at least 2 years. Stepchildren are not included among the class of eligible family members.

The heart of the B.C. Wills Variation Act is found in s. 2 which sets out the statutory basis for a successful wills variance claim. This section provides that if, in the court’s opinion, a will fails to make adequate provision for the proper maintenance and support of the testator’s spouse or children, the court has the power, in its discretion, to allow the wills variance claim and vary the will. In such a case, the court is given the power to make the provision which the court considers adequate, just and equitable in the circumstance. These two tests have been described as two faces of the same coin.

What is Adequate Provisio

The B.C. Wills Variation Act was examined by the Supreme Court of Canada in the 1930 case of Walker v. McDermott (1931) 1 D.L.R.662. In that case the court decided that a child did not have to demonstrate financial need as a prerequisite to a successful wills variance claim.

The court interpreted the British Columbia Wills Variation Act as creating a moral obligation for a parent to provide for adult independent children, and that “proper maintenance and support” is not limited to the bare necessities of existence. Note: Such a parental duty is accepted as the norm in most of the non English speaking world where testamentary freedom does not exist.

The B.C. Wills Variation Act was re-examined by the Supreme Court of Canada more recently in Tataryn v Tataryn Estate (1994) 2 S.C.R. 807. They
identified two fundamental interests protected by our Act.

1) the objective of the adequate, just and equitable provision for surviving spouse and children set out in the British Columbia Wills Variation Act:; and
2) the testator’s testamentary freedom

Thus In British Columbia, a testator enjoys this testamentary freedom only so long as he or she makes adequate provision for the surviving spouse and children protected by the B.C. Wills Variation Act.

In Tataryn McLachlin J clarified the moral duty of a testator to make proper provision. She wrote that the question of whether a testator has acted judiciously as a parent or spouse should be measured by an objective standard taking into account both the prevailing societal legal and moral norms.

Legal obligations can involve, for example claims based on unjust enrichment or other claims based on a testator’s duty to provide for a spouse or infant children.

McLachlin J described the moral duties as found in “society’s reasonable expectations of what a judicious person would do in the circumstances, by reference to contemporary community standards” (p. 822 emphasis added).

If the estate is large enough then all claims should be satisfied. Otherwise the court must prioritize the various claims. Legal claims will take priority over moral claims–i.e. legal claims must be satisfied first.

The Chief Justice noted that although the moral claims of adult children may be more tenuous than that of the spouse or dependent child, where the size of the estate permits, some provision for such children should be made, unless there are circumstances that would negate such an obligation (Tataryn at p. 822 emphasis added).

In cases where several adult children bring wills variance claims, the court will weigh the strength of each claim. As Smith J (as she then was) said in Ryan v Delhaye Estate 2003 BCSC 1083 para [67] ” In the absence of express reasons for an unequal distribution, contemporary standards create a reasonable expectation of children sharing equally in a parent’s estate.”

Section 5 B.C. Wills Variation Act — Reasons for Disinheritance

In order to be given effect by a court, the testator’s reasons for disinheriting an adult child must be valid and rational.

Section 5 of the British Columbia Wills Variation Act permits the court to accept evidence of the testator’s reasons for disinheritance and can take those reasons into account in determining if the will should be varied.

Cases Disinheriting Adult Children

Increasingly it seems disinheritances will not be permitted when they offend community standards however this development is relatively recent.

The older model of enquiry for examining disinheritances is found in Bell v. Roy Estate (1993) 75 BCLR (2d) 213.

In this case, the testator had disinherited her daughter stating that she had contacted her only sporadically over the years and had provided no comfort or support.

The daughter’s wills variance claim was dismissed. On appeal, the court held that the weight that should be given to the reasons for disinheritance should depend on their accuracy and not on whether the reasons were morally acceptable. The court also confirmed the plaintiff bore the burden of showing the enunciated reasons were false or unwarranted.

This approach was reiterated in Kelly v. Baker 15 E.T.R. (2d) 219 (B.C.C.A.). Applying the Bell analysis the court concluded that the testator had valid and rational reasons for disinheriting the claimant. They said the claimant had chosen to abandon the family and live a morally unacceptable life.

The Court of Appeal dismissed the appeal and again held that the testator’s reasons for disinheriting the child need not be justifiable. The court observed that the law merely requires that the reasons are valid, meaning based on fact, and rational in the sense that there is a logical connection between them and the act of disinheritance.

In these older cases our Court of Appeal confined themselves to determining whether the decision to disinherit was based on “true facts”, as opposed to “inaccurate” facts, and “rational”, in the sense that there was a logical connection between the reason and the act of disinheritance.

This approach has been evolving more recently with our B.C. courts putting themselves in the place of a “judicious” parent and examining whether or not the reasons for disinheritance are justifiable.

Offending Community Standards

Madame Justice Ballance in McBride v Voth, 2010 BCSC 443 at p 142 observed that “there appears to be a growing trend in the authorities decided in the aftermath of Kelly to favour a rejection of objectively insufficient reasons to disinherit a claimant on the pretence that they are simply not rational. ”

The decision of Prakash and Singh v. Singh 2006 BCSC 1545 involves such a case. Most of the mother’s estate went to her sons and very little to her daughters. The sons received $260,000 each — the daughters, $10,000 each.

Mr. Justice Eric Rice, increased the daughters bequests to an almost equal share with the sons. In doing so he stated at Para [58]:

” In modern Canada, where the rights of the individual and equality are protected by law, the norm is for daughters to have the same expectations as sons when it comes to sharing in their parents estates. That the daughters in this case would have this expectation should not come as a surprise. They have lived most of their lives, and their children have lived all of their lives, in Canada.

Peden v. Peden 2006 BCSC 1713 is a similar case involving a Deceased who had three sons–two “straight” and one “gay”. His will provided outright gifts of 2/3 of his estate to his two heterosexual sons, to the exclusion of his third son. The gay son was to receive income only on the third share with the residue passing after his death to the two heterosexual sons. Based on evidence from the drafting solicitor, the court concluded that it was the son’s sexual orientation which led his father to exclude him from sharing equally in his estate.

The court allowed a wills variance claim to provide an equal share to the third son. In so doing, the court observed “homosexuality is not a factor in today’s society justifying a judicious parent disinheriting or limiting benefits to his child.”

Objectively Insufficient Reasons

There is an apparent incompatibility between the reasoning of the B.C. Court of Appeal in Bell and Baker supra and reasoning of the Supreme Court of Canada in Tataryn The B.C. appeal decisions seemed to exclude an objective examination the testator’s reasons to see if they were justifiable from the standpoint of the contemporary judicious parent referred to in Tataryn.

Many trial decisions skirt around this apparent conflict. Notably in the recent decision of LeVierge v Whieldon 2010 BCSC 1462, Sewell J reconciled the two lines of cases.

In this case, Mrs. Whieldon died 76 with an estate of about $1.225 million. Her will divided her estate equally between her two sons and disinherited her daughter. The court found the disinheritance was largely due to the daughter manipulating her father into transferring his home to her thereby excluding her brothers from inheriting any share.

The court held that the plaintiff had failed to establish that her mother did not have a valid reason to disinherit her and therefore refused to vary the will.

After referring to the Tataryn and Kelly decisions, Sewell J, said as follows:

[61] The above formulation of the task facing the Court must be understood in the context of the fundamental duty of the Court to satisfy itself that the actions of the testator are consistent with society’s reasonable expectations of what a judicious parent would do in the circumstances by reference to contemporary community standards. Thus, I consider that it is appropriate to intervene, even if the testator acted on true facts and there is a logical connection between the decision to disinherit and those facts, if the result of such disinheritance would be inconsistent with an objective standard of what a judicious parent would do in these circumstances. An illustration of this principle is Peden v. Peden 2006 BCSC 1713, in which this Court concluded that a judicious person applying contemporary community standards could not be said to be acting in accordance to his moral duty when he discriminated against one of his children on the basis of that child’s sexual orientation.

7. Examples of circumstances which bring forth a moral
duty on the part of a testator to recognize in his
Will the claims of adult children are: a disability
on the part of an adult child; an assured expectation
on the part of an adult child, or an implied
expectation on the part of an adult child, arising
from the abundance of the estate or from the adult
child’s treatment during the testator’s life time;
the present financial circumstances of the child; the
probable future difficulties of the child; the size
of the estate and other legitimate claims.

In McBride v. Voth, 2010 BCSC 443, Balance J. at paras [129-142] listed the following additional factors to be considered:

contributions by the claimant to the accumulation of assets by the Deceased
bona fide expectation by the claimant to receive a benefit on death.
misconduct or poor character disentitling the claimant to relief
estrangement- which may or may not negate the moral duty depending on what role the testator played in the breakdown of the relationship
childhood neglect may give rise to a moral duty
lifetime gifts or benefits outside of the Will
unequal treatment of children
Conclusion

For any parent who is really determined to disinherit an adult child in their last will, it is important the parent prepare a detailed, written memorandum setting out the reasons for disinheritance. That memorandum should accompany the will.

It is best to include examples to illustrate the reasons. For example instead of saying merely “he was abusive” a more effective memorandum would include illustrations such as “during the year before his father’s death, our son never once came to visit him” or “after Christmas 2005, my daughter returned all of our Christmas presents unopened” Such examples paint the picture for the court in a fashion that a mere general description never can.

As noted above, the reasons must be accurate and there must be a connection between the reasons and the disinheritance. Additionally however the courts will also scrutinize the reasons to ensure they do not offend objective contemporary community standards. This objective standard is now a legal criteria in examining any purported disinheritance in our province.

Trevor Todd is one of the province’s most esteemed estate litigation lawyers. He has spent more than 40 years helping the disinherited contest wills and transfers – and win. From his Kerrisdale office, which looks more like an eclectic art gallery than a lawyer’s office, Trevor empowers claimants and restores dignity to families across BC. He is a mentor to young entrepreneurs and an art buff who supports starving artists the world over. He has an eye for talent and a heart for giving back.